R. v. Waite

The Chief Justice — On this appeal as of right, the appellant raises three questions of law on which a judge of the Alberta Court of Appeal dissented. Two of them can be dealt with summarily. First, the appellant submits that the trial judge was required as part of her instructions on reasonable doubt to specifically direct the jury that they had to acquit both accused if they could not decide which accused had committed the murder. Second, the appellant submits that the trial judge failed to properly explain to the jury the relationship between the intoxication defence and the mens rea required for aiding and abetting in second degree murder. For the reasons given by Rowbotham J.A. in the Court of Appeal, we would not give effect to these grounds.

The third ground of appeal relates to certain out-of-court statements made by the appellant’s co-accused and which the Crown introduced into evidence against the co-accused as party admissions. The appellant submits that the trial judge erred by failing to instruct the jury that it could rely on those statements for their truth in determining their verdict in relation to the appellant.

We would not give effect to this argument. The general rule is that out‑of‑court statements by a party may be adduced as evidence of their truth by an opposite party. But, as the trial judge instructed the jury, statements admitted on that basis may in general be used only in deciding the case of the accused who made the statements. The trial judge gave this standard instruction with the express agreement of trial counsel. She did not err in doing so. The appellant’s counsel at trial did not seek to adduce the co-accused’s out‑of‑court statements for their truth as part of the appellant’s case under the principled approach to the hearsay rule or on any other basis.

There appears to be nothing that would have prevented the appellant from attempting to have these statements considered for their truth under the principled approach to the hearsay rule. However, no such attempt was made here. There was, therefore, no basis raised for the judge to give the instruction now sought. We note that R. v. Edwards, 2004 BCCA 558, 205 B.C.A.C. 42, in which one accused adduced in evidence as part of his case an inculpatory out-of-court statement by a co-accused, gives rise to different issues which we do not have to address here.

While that is sufficient to address the legal issues on which the dissent in the Court of Appeal was based, we also observe that the statements made by the appellant and his co-accused were highly unreliable on their face and tended, in any event, to incriminate both of them. There is no suggestion that defence counsel not pursuing the admissibility of these statements as evidence of their truth by virtue of the principled approach to hearsay or seeking a severance so that the co-accused would be a compellable witness were anything other than reasonable tactical decisions. No basis has been shown to permit the appellant to revisit these matters on appeal: see R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565, at para. 68.

For these reasons, the appeal is dismissed.